For The Constitutionality Of Article 28, Subparagraph (C). B) Of The Law On Citizenship Of Republic Of Moldova Nr. 1024-Xiv Of 2 June 2000 (Referral No. 10A/2015)

Original Language Title: pentru controlul constituţionalităţii articolului 28 lit. b) din Legea cetățeniei Republicii Moldova nr. 1024-XIV din 2 iunie 2000 (Sesizarea nr. 10a/2015)

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for the constitutionality of article 28, subparagraph (c). b) of the law on citizenship of Republic of Moldova nr. 1024-XIV of 2 June 2000 (Referral No. 10a/2015)



Published: 05.02.2016 in Official Gazette No. 25-30 art no: 4 date of entry into force: 06.10.2015 In the name of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, judges, with the participation of Mrs Abdow BALABAN Registrar having regard to the appeal, filed on March 31, 2015, recorded at the same time, examining the appeal referred to in public plenary considering the acts and proceedings of the dossier, acting in plenary sitting, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on March 31, 2015, in accordance with article 10. 135 para. (1) (a). of the Constitution, article 5). 25 lit. g) of the law on the Constitutional Court and the 38 para. (1) (a). g) of the code of constitutional jurisdiction, by the deputies in the Parliament of the Republic of Moldova, Mr. Valeriu Munteanu and Ion Casian, on notification constitutionality control art. 28 lit. b) of the law on citizenship of Republic of Moldova No. 1024-XIV of June 2, 2000.
2. referral to the Authors claimed that the powers of the Ministry of information technology and Communications in the field of acquiring nationality through recognition violates the President's responsibilities include "to address problems of nationality", provided for in art. 88 lit. c) of the Constitution.
3. By decision of the Constitutional Court of 2 June 2015 referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court requested the views of the Parliament, President and Government.
5. In the plenary session of the Court the appeal was supported by Mr. Ion Casian, Member of Parliament. The President of the Republic of Moldova was represented by Mr. Alexandru Ohotnicov, head of the Directorate General within the apparatus of Moldovan President. The Government was represented by Mr. Vitalie Tarlev, Deputy Minister of information and communications technology, and Neale, Chief S. Directorate of the Ministry of information technology and Communications. The representative of the Parliament did not attend the court session.
In FACT 6. The Parliament, the law on citizenship of the Republic of Moldova No. 1024-XIV of 2 June 2000, authorized the Ministry of information technology and Communications with regard to the procedure for examining applications for recognition of nationality in the case of the Republic of Moldova.
7. Thus, under art. 28 lit. b) of the law on citizenship of Republic of Moldova nr. 1024-XIV of 2 June 2000 (hereinafter referred to as the law of nationality), Ministry of information technology and Communications (MITC hereinafter) shall be entrusted with the tasks regarding the institution of citizenship, namely the right to examine requests for acquiring citizenship by recognition, in accordance with the provisions of art. 12(3). (2), and to make the decision for the recognition of citizenship or denial. In the case of persons who hold citizenship of another State, a decision shall be taken in accordance with the opinion of the Department argued for intelligence and security.
PERTINENT LEGISLATION 8. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 17 Moldovan citizenship "(1) the Moldovan citizenship is acquired, retained or lost only under the conditions laid down in the organic law.
[…]”


Article 88 other duties "Moldovan President meets the following prerogatives: [...]
c) resolves issues of Moldovan citizenship and grant political asylum;
[…]”
9. The relevant provisions of the law on citizenship of the Republic of Moldova nr. 1024-XIV of 2 June 2000 (republished: M.O., ed. Special on 9 December 2005) are as follows: Basis of acquiring citizenship in article 10 (1) Moldovan citizenship is acquired by birth: (a));
b) recognition;
c) adoption;
d) revival;
e) naturalization.
(2) the Moldovan citizenship can be acquired and under international agreements to which Moldova is a party. "


Article 12Dobândirea citizenship through recognition ' (1) are recognized as citizens of the Republic of Moldova for persons who have acquired and retained that nationality under the laws of the previous as well as persons who have acquired citizenship in accordance with the present law.
(2) are recognized as citizens of the Republic of Moldova people who have expressed their desire to become citizens of the Republic of Moldova, namely: a) persons born in the territory of the Republic of Moldova or one of whose parents or proper was born in the territory called;
b) persons until 28 June 1940, they lived in Bessarabia, Northern Bukovina, in hertsa, and their followers in the Moldavian ASSR;
(c) persons deported or displaced) in the territory of the Republic of Moldova since 28 June 1940, and their descendants;
d) persons on 23 June 1990 lived legally and habitually in the territory of the Republic of Moldova and which continues to live in the present. "


Article 28Atribuţiile of the Ministry of information and Communication Technology, and of his "Ministry of information and Communication Technology and his organs: a) receive from persons residing lawfully and habitually in the territory of the Republic of Moldova, under the present law, requests for acquiring Moldovan citizenship by naturalization and regaining of Moldovan citizenship, check the documents submitted, requesting data gathers, drawing up a communication and together with the opinion of the Ministry of Internal Affairs, information and Security Service and with the applicant's request, it sends the President for resolution;
b) examines applications for acquisition of citizenship by recognition, in accordance with the provisions of article 12 para. (2), and decide whether the recognition of citizenship or denial. In the case of persons who hold citizenship of another State, a decision shall be taken in accordance with the opinion of the Department of information argued and security;
c) determines the membership of non-affiliation or persons from the Republic of Moldova;
d) forward to the President proposals on grounds relating to the withdrawal of citizenship of the Republic of Moldova;
e) issued documents that confirm the acquisition or loss of citizenship of the Republic of Moldova;
(f) persons who keep records) gained or lost their citizenship of the Republic of Moldova;
g) running the decrees and decisions of the President of the Republic of Moldova concerning citizenship and issuing necessary acts;
h) exercise and other duties provided for by law. "
10. The relevant provisions of the Universal Declaration of human rights (ratified by decision of Parliament of the Republic of Moldova No. 217-XII of 28 July 1990, News, 1990, nr. 8, art. 223) are as follows: 1 article 15 ". Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality or of the right to change his nationality. "
11. The relevant provisions of the Convention with regard to citizenship ending in Strasbourg on 6 November 1997 (ratified by decision of Parliament of the Republic of Moldova No. 621-XIV of 14 October 1999, Official Gazette, 1999, no. 120-122, 583), are as follows: Article 1 3Competenţa State ") each State has the right to determine through legislation to which they are citizens.
[…].”


Article 6Dobândirea citizenship "[...]
3) each State party provides in its national legislation the possibility of acquiring citizenship by persons who reside legally in the territory with its title. When determining the conditions for acquisition of the citizenship of the State party may not provide for permanent living condition for a period in excess of ten years, up to the time of application.
[...].”


Article 10Examinarea applications "each State party shall ensure that within a reasonable examination of applications relating to the acquisition, retention, loss, recovery or legalizing his citizenship."


Article 11Deciziile "each State party shall ensure that decisions relating to the acquisition, retention, loss, recovery or the legalization of its citizenship to contain reasons in writing."
In LAW 12. Of the referral, the Court observes that it is aimed at essentially the duties of MITC in the procedure for acquiring nationality through recognition.
13. Therefore, the appeal concerns the institution of citizenship, in particular, the grounds and procedure for the acquisition of nationality, as well as competent bodies in matters of granting nationality.
A. ADMISSIBILITY Of 14. In accordance with its decision of 2 June 2015, the Court noted that, under article 135 paragraph 1. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), the appeal concerning the constitutionality of article 28, subparagraph (c). b) of the law on citizenship of Republic of Moldova nr. 1024-XIV of June 2, 2000 is the responsibility of the Constitutional Court.

15. the Court notes that articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
16. the Court noted that the prerogative vested in it by article 135 paragraph 1. (1) (a). the Constitution requires) of the correlation between the laws and the Constitution, taking into account the principle of the supremacy of the latter.
17. the Court finds that the object on notification constitutionality control is the art. 28 lit. b) of the law on citizenship of Moldova, which governs the powers of MITC in the acquisition of nationality through recognition.
18. Note that the contested provisions of the Court were not made the subject of constitutionality by the Constitutional Court.
19. the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
20. Therefore, in order to elucidate its compliance with the provisions of the contested constitutional provisions, the Court will operate, in particular, with the provisions of article 17, subparagraph (c) and 88. c) of the Constitution, as well as with its previous jurisprudence.
B. FUND CASE alleged infringement has 88 articles 17 and lit. c) of the Constitution. The contested provisions to be considered in the light of article 17 of the Constitution, according to which: "(1) citizenship of the Republic of Moldova shall be acquired, retained or lost only under the conditions laid down in the organic law.
[…].”
22. Furthermore, the authors claim, in particular referral, that the rules on notification constitutionality control subject to come into conflict with article 88 lit. c) of the Constitution, which lays down: "Moldova's President fulfills the following tasks: [...]
c) resolves issues of Moldovan citizenship and grant political asylum;
[…]”
1. Arguments of the authors of the referral. According to the authors of the referral, the examination of applications relating to the acquisition of nationality through recognition by the MITC violates art. 88 lit. c) of the Constitution.
24. Authors of the referral considers that taking decisions, leading to the obtaining of nationality or refusal to take the field of "resolving" the application for acquiring citizenship, assigned by the Constitution to the President of the Republic of Moldova only. Thus, the rule limits the powers of the head of State challenged in this area.
2. Arguments of the authorities. In the opinion of the President of the Republic of Moldova by norma challenged does not conflict with the Constitution, the competence to take only the settlement of granting citizenship by naturalization and revival.
26. as a central organ MITC, in what is the survey of the population, only deliver an opinion establishing that the person may be accorded to a citizen of the Republic of Moldova on the basis of supporting documents.
27. Also according to the mentioned that presented the acquisition of Moldovan citizenship by birth, by adoption and recognition is not required by the oath of loyalty of Republic of Moldova, in contrast to the granting of citizenship under the conditions of naturalisation and the recovery thereof, which is the responsibility of the President, the oath is a prerequisite.
28. In the views presented by the Government mentioned that the acquisition of nationality through recognition is an act of the State, through the volitive determines membership in the Moldovan citizenship. At the same time, confirmation of the recognition of citizenship is of an administrative nature and shall be carried out in accordance with a simplified procedure and within the period, is not necessary to issue a decree by the President of the Republic of Moldova.
3. Assessment of the Court 3.1. 3.1.1. General principles The exclusive right of the State of citizenship of 29. The Court noted that the citizen is the basic component of the State's demographics, size it, gaining its status in relation to other elements of the population, through the institution of citizenship. Thus, the legal link between citizenship designates person and the State. In its judgment No. 14 of 19 March 2002 the Court held: "[...] Moldovan citizenship expresses a person's affiliation to the Moldovan State. She is not only a simple relationship of "belonging". Citizenship confers on a person's identity and is the legal situation arising from legal relations stable made between the individual and the State, a situation characterized by fullness of reciprocal rights and obligations stipulated in the Constitution and other laws. Citizenship is exclusively a matter of State. This emerges with particular clarity the constitutional and legal provisions, according to which the determination of rights and duties of citizens, of modes of acquisition and loss of citizenship constitutes the exclusive attribute of the State. […]”
31. Note that Court finds regulatory legal citizenship in the Constitution and legislative acts, international laws, the consequential, as well as the Universal Declaration of human rights and the European Convention on nationality.
32. In this respect, the Court noted that, according to article 17 of the Constitution, "Moldovan citizenship is acquired, retained or lost only under the conditions laid down in the organic law".
33. Furthermore, article 88 of the law authorizing the President of the Republic of Moldova's Supreme with one of the main tasks in the exercise of State power, namely the settlement of the issue of citizenship of the Republic of Moldova.
34. the Court shall retain the status of citizen, allow the person to be the holder of the rights and fundamental freedoms guaranteed by all State governance mechanisms.
35. Beneficiaries of the democratic rights and freedoms, citizens in the meantime and holders of certain fundamental duties. The quality of citizen requires devotion and fidelity to the people's interests, as well as meeting all of the obligations enshrined in the Constitution and other laws.
36. Furthermore, the Court noted that, once acquired, quality of citizenship cannot be revoked by the State only in exceptional cases.
37. the Court shall retain that quality imuabilitatea citizen is already recognized as a constant for any State law. This constant has been expressly proclaimed by the Universal Declaration of human rights, which in article 15, proclaimed that "no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality".
3.1.2. The ways of acquiring citizenship 38. Pointing out that citizenship is a matter of State, note that State Court holds the sovereign right to regulate through legislation to both modes of granting citizenship, as well as the procedures to be followed in each case.
39. This right is recognized by the State and by article 3 paragraphs 1 and 2. (1) of the Convention with regard to citizenship, which provides that "every State has the right to determine through legislation to which they are citizens."
40. the Court noted that the doctrine of law identifies two General modes of acquisition of citizenship: by birth and by naturalization (by granting upon request).
41. The acquisition of citizenship by birth, which has as a basis for acquisition of citizenship of the fact of birth of the person, knows the two principles: the right of blood (ius sanguinis), also called by descent or origin, and the right soil (jus soli).
42. By applying the principle of ius sanguinis State has the possibility of granting citizenship to the child born of at least one parent who is a citizen. This principle does not require imperative that both parents hold the same citizenship.
43. the principle of ius sanguinis summarizes States ' rights from individuals who emigrate, thus, by the consecration of this principle it is desirable to transmit citizenship of the parents and the child, just born in the territory of another State. 44. This way of acquiring citizenship is recognized as the most durable, relying on the character of the transfer of the blood of children with parents from their relationship with the State, whose parents are citizens.
45. Thus, with regard to the European Convention on nationality (article 6) requires States parties to recognize as citizens children born of parents what they hold citizenship.
46. another connection point for the acquisition of citizenship is the original principle of ius soli, in this case given the importance place of birth of the individual.
47. in applying the right soil, in most cases, the State has a margin of discretion, having regard to the right not to recognize citizens people born in its territory if it does not remain stateless persons (except children find in its territory).
48. the court notice that the criterion for the delimitation of these modes is the way of expression of the will of the person for obtaining the quality of citizen and resides in the discretionary right of the State to grant or recognize this quality.
3.2. application of the principles in this question 3.2.1 acquisition of modes of citizenship of the Republic of Moldova

49. Bearing in mind the provisions of article 17, paragraph 2. (l) of the Constitution, whereby the Republic of Moldova citizenship issues are regulated by the organic law, the Parliament has adopted the law on citizenship of the Republic of Moldova nr. 1024-XIV of June 2, 2000, which sets out the legal framework of relations relating to citizenship of the Republic of Moldova.
50. Art. 10 of the law on citizenship provides five grounds for acquisition of nationality, namely: a) birth; b) recognition; c) adoption; d) revival; e) naturalization.
51. In the light of the findings of the Court, the first three ways of acquiring citizenship (birth, recognition and adoption) are based on the criterion of birth or similar criteria, such as adoption. Such persons shall, pursuant to the acts, the issuance of identity documents confirming possession of citizenship of the Republic of Moldova.
52. The acquisition of citizenship through the "revival" and "naturalization" is characterized by the fact that at the time of application for the grant of citizenship to persons not having the status of a citizen, in most cases they are or were citizens of another country and wish to acquire citizenship of the Republic of Moldova, requesting the resolution of this issue by the competent authorities.
53. While examining the grounds for acquisition of citizenship, the court notice that the legislature has operated with different terms. Thus, article 30. 11 of the Citizenship Law, for the acquisition of citizenship by "birth" was made with the term "citizen" is considered, at art. 12 of law for acquiring citizenship through the "recognition" was used the term "are recognized as citizens".
54. another legal terminology was used by the legislator to the acquisition of citizenship by "revival" (article 16) and "naturalization" (art. 17), and "one can regain" and "may be granted upon request."
55. Having regard to the foregoing, the court notice that only the "basis of restoration" and "naturalisation" involves a discretionary right of the State to grant citizenship or not, exercised by the President of the Republic of Moldova, by virtue of constitutional rule, according to which it may be granted citizenship issues "Republic of Moldova".
3.2.2. The procedure of acquiring citizenship by recognizing 56. The court notice that acquiring citizenship of the Republic of Moldova through recognition is classified the modes by which the person identifies the status of a citizen on the basis of civil status acts.
57. However, under art. 12(3). (1) of the Citizenship Act, are recognized as citizens of the Republic of Moldova for persons who have acquired and retained that nationality under the laws of the previous as well as persons who have acquired citizenship in accordance with the present law.
58. Thus, under art. 12(3). (2) of the said law, are recognized as citizens of the Republic of Moldova people who have expressed their desire to become citizens of the Republic of Moldova, namely: a) persons born in the territory of the Republic of Moldova or one of whose parents or proper was born in the territory called; b) persons until 28 June 1940, they lived in Bessarabia, Northern Bukovina, in hertsa, and their followers in the Moldavian ASSR; (c) persons deported or displaced) in the territory of the Republic of Moldova since 28 June 1940, and their descendants; d) persons on 23 June 1990 lived legally and habitually in the territory of the Republic of Moldova and which continues to live in the present.
59. The acquisition of citizenship by recognition, as opposed to the acquisition of citizenship by revival, restoring citizenship represents that the person owned it and that, in the event that circumstances, lost it without a personal request and without issuing an administrative act in this regard. This way of acquiring citizenship is called through repatriation or reintegration through.
60. Thus, the essence of the institution of recognition of citizenship lies in the fact that the State is able to restore citizenship to persons who have had a vocation to take by virtue of political and legal circumstances or who have lost it as a result of historical events (change of State borders, deportations, etc.).
61. the Court shall retain that through this way of acquiring citizenship merely resumed with a historic truth, found previously by the authorities of the person's birth certificate.
62. In accordance with article 28 (b)) of the Citizenship Act, MITC-site is the responsibility of the power to "examine applications relating to the acquisition of citizenship by recognition".
63. the court notice that MITC was empowered by an organic law with a technical task, under procedural aspect of the Ministry's decision is not something other than a finding of fact that person may be recognized as a citizen of the Republic of Moldova on the basis of supporting documents.
64. In situations where exposed to the article 12 of the law on nationality, to MITC control the veracity of the documents submitted on the previous quality of the citizen, an opinion in this regard and the issue of certifying the person's citizenship laws. In this regard, and the term "recognition" means the action of confirm, validate or identify a known fact before.
65. Thus, the actions of MITC is tantamount to not resolve the substance of the application for the grant of nationality.
66. At the same time, the court notice that Act by which any application for MITC rejects of nationality by recognising may be challenged by the applicant in the Court.
67. the Court noted that the constitutional rule of interpretation in article 8. 88 lit. c) for the purposes of the award of the President of the Republic of Moldova has jurisdiction to settle all matters of nationality, including in the case of "recognition", would lead to the granting of nationality by Decree in the case of "birth" or "adoption".
68. the Court rejects the authors ' arguments regarding similarity with referral situations examined by the Constitutional Court by decision No. 11 of 30 October 2012. The provisions of the law on citizenship, said the decision under review envisages a situation in which the Republic of Moldova shall be granted citizenship through naturalization.
69. the Court reiterates that, taking account of the nature and status of the Office of President of the Republic, its competences in the field of citizenship relate to issues involving the exercise of the right of a sovereign State and the award of discretionary citizenship, naturalization or recovery, as well as cases in which Moldovan citizenship is granted by Decree of the President.
70. the Court points out that in the case of birth, recognition and adoption only confirms, on the basis of supporting documents and administrative procedures simplified, the fact of belonging to the Moldovan nationality, not required the issue of a decree by the President.
71. Thus, for the reasons mentioned, the court notice that, in the matter under consideration, a fact only MITC finds on the basis of documentary evidence, the discretion to grant or not the nationality in the case of meeting all the conditions prescribed by law, and therefore does not violate the duties of President of the Republic of Moldova in the field of nationality, provided for in art. 88 lit. c) of the Constitution.
For these reasons and in light of the Constitution's articles 140, 26 of the law on the Constitutional Court, 6, 61, 62 lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. the appeal is rejected as unfounded deputies in the Parliament of Moldova Valeriu Munteanu and Ion Casian.
2. the constitutional article recognizes b) of the law on citizenship of the Republic of Moldova No. 1024-XIV of June 2, 2000.
3. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.